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St. Louis Teacher’s Tweets Cause Uncertainty for Social Media and Educators

Though the teacher's case has been settled, debate continues about free speech for public employees on such sites as Twitter, Facebook and the like.

by Jack Witthaus, St. Louis Post-Dispatch / August 17, 2015

(TNS) -- An area teacher is back on the job after profane tweets about baseball and Ferguson protests got her into trouble this week.

Special School District of St. Louis County announced Friday afternoon that Stacy Brixey would keep her job. The investigation is complete, district officials said, and Brixey will return to work.

She had worked at Hazelwood Central High School. At her request, she will take a different assignment within the Special School District, the announcement said.

On Tuesday, Brixey was placed on paid administrative leave during an investigation of quarrelsome messages on her Twitter account.

While Brixey’s case has been settled, debate continues about free speech for public employees on social media.

Todd Fuller, excutive director at the Missouri State Teachers Association, said Friday that Brixey’s situation resolved itself as he expected it would. But he said that the way teachers and public employees interact on social media was still up to debate in Missouri.

“What will have to happen will be to the extreme of a teacher or a public employee losing their position and litigation taking place,” said Fuller. That’s how a precedent will be set, he said.

Brixey’s handle, @sports_chick1, had recently posted disparaging comments about Ferguson protests and sports teams.

Multiple Twitter users noticed the tweets and brought attention to Brixey’s Twitter account before her handle became private Tuesday.

District spokeswoman Nancy Ide said Wednesday that the Special School District did not have a policy specific to social media communication but had been in the process of creating one.

The social media policy is currently in the “review phase” and could be in place later this year, she said.

Ide said the policy was not developed in response to any incident involving employees and social media use. She said discussion started after the district created a Facebook page. Later, employees expressed interest in creating other social media accounts to communicate with the community, which led to policy development.

The district’s current electronic communication policy deals mainly with communication between teachers and students or teachers and parents. The policy says that teachers should refrain from communication with students on “public social networking” unless that communication has been approved or a familial relationship exists.

This policy, though, does not apply to speech in all incidents, such as when a public employee speaks in a non-official capacity. Kelli Hopkins, an attorney with the Missouri School Boards’ Association, said Wednesday that incidents involving government employees and free speech came down to a balancing test.

Hopkins said that if a public employee in a non-official capacity said things that could be deemed inappropriate or disruptive in the workplace, then that public employee could be disciplined.

“In an extreme example, if a public employee were to use hate language or derogatory slang terms publicly, even in a private capacity, I think the school district would find it difficult to keep them as an employee,” Hopkins said.

In 2011, the Missouri Legislature passed a law, dubbed the “Facebook law,” that banned electronic communication between teachers and students. The Missouri State Teachers Association filed for an injunction against the law and won.

The law was then revised to leave it up to school districts to create individual electronic communication policies.

Fuller said Thursday that Brixey’s situation was similar to the Facebook law in that both involved First Amendment issues. He said teachers were often perceived to be held to a higher standard regarding speech because their jobs are to communicate with the public. He said that in the years after the Facebook law, not much had changed in Missouri case law. School districts have developed various electronic communication policies, and some have adopted social media-specific policies. But Fuller said these policies had not been challenged.

“This is ripe for debate, and this was ripe for debate three years ago,” Fuller said.

School districts nationwide have faced issues involving social media. In 2011, a teacher in Doylestown, Pa., blogged negative comments about students. She did not name herself in the blog but did post a picture of herself. She was suspended and later reinstated.

Earlier this year, a Pennsylvania federal court ruled in the Doylestown case that a public school teacher’s comments on a private blog were not protected speech under the First Amendment.

Robert Shibley, executive director for Foundation for Individual Rights in Education, said Thursday that the free speech debate around the Brixey incident isn’t new. Before social media, public employees would have exercised free speech mostly in human-to-human conversations, Shibley said. Now, speech is viewed and recorded online.

But public employees, in a non-official capacity, have greater First Amendment protection than private employees, who are regularly fired or disciplined for things tweeted, he said.

Shibley said he had looked at social media and free speech debate taking place on college campuses, organizations that his group normally deals with. He said there wasn’t much consistency dealing with and punishing “offenses” on social media, even for private employees.

Although Brixey is not a member of the Hazelwood School District, Shibley pointed out that the community in which she works has gone to great lengths to censor speech. The Supreme Court ruled in the 1988 Hazelwood School District vs. Kuhlmeier case that schools could censor student newspapers.

Still, he said, debate continues about how much free speech public employees have when they use social media.

“It’s a developing area of law,” Shibley said.

Brixey could not be reached for comment.

©2015 the St. Louis Post-Dispatch. Distributed by Tribune Content Agency, LLC.

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